Press Release from the Washington State Dept. of Ecology, March 15, 2008
OLYMPIA – The Washington Department of Ecology (Ecology) today filed a petition with the U.S. Court of Appeals for the District of Columbia to protect the state’s role in federal licensing procedures for energy projects. The petition asks the court to clarify federal law regarding a recent Federal Energy Regulatory Commission (FERC) decision.
In December, FERC sidestepped the established licensing procedure by granting a conditioned license to Finavera Renewables, superseding decisions from other federal and state agencies with authority in the federal licensing process. Finavera proposes a wave energy project at Makah Bay off the Washington coast.
FERC denied Ecology’s initial appeal of the Finavera conditioned license in March.
Ecology argues that federal law does not allow FERC to offer a conditioned license in advance of obtaining input and consideration from the other agencies with a regulatory role in the licensing process. Today’s petition would permit the federal court to determine if FERC’s action is consistent with federal law. Ecology requests the court confirm the existing requirements of federal law by declaring that FERC does not have authority to issue conditioned licenses.
“One of Ecology’s concerns is providing a straightforward process of licensing and ensuring applicants are not given false expectations that their projects have all of the approvals to move forward when they do not,” said Ecology program manager Gordon White. “This new policy by FERC has the strong potential to confuse and even lengthen the process for applicants.”
Ecology has responsibility under the federal Clean Water Act and Coastal Zone Management Act to authorize that project proposals can be undertaken without harming water quality or sensitive shoreline areas. The agency reviews applications and can write conditions into the approvals to ensure any potential impacts are avoided or minimized.
Historically, agencies with responsibility for protecting water quality, shorelines, fish and other environmental resources review and decide upon applications before FERC issues a final license. That did not happen in this instance.
FERC’s role is to grant a final license that incorporates state and federal laws and conditions after a thorough review by agencies charged with upholding those regulations. Under its newly issued policy, FERC says it plans to consider amendments to its conditioned licenses. However, contrary to existing law, it will not guarantee that an amended version will include all the necessary conditions to protect the environment identified by other agencies.
White says changing the sequence of approvals would set a dangerous precedent for the applicant, interested citizens and the environment.
“Without FERC’s guarantee that the final license will include environmental protections, its new policy on conditioned licensing will be a major concern for us,” White explained. “Applicants deserve to understand what protections they must build into their projects, and the process we have been using gives them that certainty.”
Ecology gave approval for Finavera’s proposed wave energy project with conditions to protect water quality and environmental resources. The agency supports the development of alternative energy sources.
Once receiving the petition, the District Court will determine the schedule for the remaining court process such as filing opening briefs, receiving supporting or opposing briefs and hearing arguments. The court typically takes a few months to complete this whole process.